Kusum Devi And Another vs State Of U.P.
2022 Latest Caselaw 1325 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55053 of 2021
 

 
Applicant :- Kusum Devi And Another
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Vikas Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Vikas Srivastava, learned counsel for the applicants and learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of the applicants, namely, Kusum Devi and Pursottam Singh under Section 439 of the Code of Criminal Procedure, with a prayer to release them on bail in Case Crime No. 192 of 2021 for offence punishable under Sections 498A, 304B of the Indian Penal Code and Section 3/4 Dowry Prohibition Act, registered at Police Station Gabhana District Aligarh during pendency of the trial, after rejecting the bail application of the applicant by the Sessions Judge, Aigarh vide order dated 23.11.2021.

Brief facts of the case are that the First Information Report dated 09.07.2021 has been lodged by the father of the deceased against the applicants and three other named persons stating therein that marriage of his daughter Poonam was solemnized on 12.12.2015 according to Hindu rights and ritual with co-accused Rajesh and he spent Rs. 8 lacs to perform the marriage ceremony and from the first day of the marriage, in-laws of his daughter were dissatisfied with the aforesaid dowry owning to this, they used to harass his daughter by beating and were demanding Rs. two lacs as an additional dowry. On 08.07. 2021 information was given to the first informant by his daughter that she was being coerced for demand of additional dowry. On the next day i.e. 09.07.2021, in the morning, the applicants and other co-accused, Rajesh (her husband) and her-in-law, namely Kalu, brother-in-law, (Jeth), Yoshoda Devi, sister-in-law(Jethani) have murdered his daughter for demand of additional dowry.

After lodging the first information report, inquest proceeding of the body of deceased was conducted on 09.07.2021 6.00 p.m, post mortem of the body of the deceased was also conducted on 09.07.2021 at 6.40 P.M. As per post mortem report, cause of death is Asphyxia due to antimortem smothering and time of death is about 8 to 24 hours. After recording the statement of prosecution witnesses, charge sheet has been filed on 02.10.2021 against the applicants but the investigating officer exonerated other co-accused Kallu, brother-in-law (Jeth) and Yoshoda Devi, sister-in-law (Jethani). The applicant no.1 was arrested on 04.09.2021 and the applicant no. 2 was arrested on 27.09.2021.

Learned counsel for the applicant submits that the applicants are innocent and have been falsely implicated in the present case due to ulterior motive. It is further submitted that the applicant no. is the mother-in-law of the deceased and the applicant no.2 is the is father-in-law of the deceased. It is further submitted that marriage of daughter of the first informant took place on 12.12.2015 which is five and half years prior to incident. It is further submitted that general allegation of harassment, torturing, cruelty for demand of dowry has been levelled against the applicants. It is further submitted that no specific role or involvement in the commission of offence has been attributed to the applicants. It is further submitted that cause of death is Asphyxia due to antimortem smothering. It is further submitted that no injury was found on the person of the deceased except smothering.

He has next argued that the applicant has no criminal history to his credit. If the applicant is released on bail, he shall not misuse the liberty of bail. The applicant is not convicted in cognizable offence by any court.

Per contra, learned AGA has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

After considering the facts of the present case it prima facie appears that;

(a) the applicant no. is mother-in-law of the deceased and the applicant no. 2 is father-in-law of the deceased ;

(b) no injury was found on the persons of the deceased except smothering;

(e) general allegations of harassment, torturing, cruelty for demand of dowry has been levelled against the applicants

(d) no specific role or involvement in the commission of offence has been attributed to the applicants;

(e) co-accused Rajesh, husband of the deceased is in judicial custody;

(f) On the basis of similar set of allegation, the Investigation Officer exonerated 2 other named co-accused persons.

It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

Let applicants, Kusum Devi and Pursottam Singh be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The applicants shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The applicants shall not pressurize/intimidate the prosecution witnesses.

(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.

(iv) The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

(v) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel.

(vi) The applicants shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.

The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led, unaffected by anything said in this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 25.4.2022

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